Those that practice in the area of criminal law will no doubt think, why bother talking about undertakings given by co-offenders? Well, one reason is that there seems to be a disparity between practices in various regions of Queensland. Another is that the knowledge of the content of an undertaking given by a co-offender and the extent to which he or she has been given special consideration by a court in sentencing can be essential in the destruction of a witness’ creditability.

So what is an undertaking? Section 13A of the Penalties and Sentences Act 1992 provides a mechanism whereby a person being sentenced for an offence may give an undertaking to cooperate with law enforcement agencies, which in turn is taken into account by the Court in sentencing the offender.

The procedure is a simple one and well explained by the provisions of s. 13A.

Importantly, after imposing the sentence the presiding judicial officer must (pursuant to s. 13A(7)) close the court and then state in closed court that the sentence is being reduced under this section and state what the sentence would have been but for the undertaking. The Court must cause to be sealed and place on file a record of evidence or submissions made relevant to the reduction of the sentence and the sentencing remarks made in closed court. This is accompanied by an order of the court that the envelope may only be opened with an order of a court. The usual form of an undertaking is to give evidence in accordance with a statement previously given by the person (though they may also simply be to ‘give assistance to the Office of the Director of Public Prosecutions’).

Often the offender will be a co-offender who has been dealt with earlier, and at other times they will give evidence in a wide variety of trials because of their contact with the defendants on trial (a police informant) also having been dealt with earlier by the courts. A person who fails to comply with their undertaking can have their sentence re-opened under s. 188 of the Penalties and Sentences Act 1992 and another sentence imposed. Furthermore, depending upon what has occurred, a perjury charge may be open (the statement previously given will usually be on oath).

Recently in R v Evans, Robu and Bivolaru [2006] QCA 5271 the Court of Appeal (Keane and Holmes JJA, Atkinson J) was asked to consider a range of grounds including the effect of a refusal by a trial judge to allow s. 13A undertakings of Crown witnesses to be opened.

The appellants had been charged with trafficking dangerous drugs and tried in Cairns. Two witnesses, Ferguson and McReaddie, had also been charged and convicted of related offences and had undertaken to give evidence against the appellants. For their undertaking, each had received a substantial reduction in sentence (Ferguson for example was given 5 years’ imprisonment wholly suspended but faced the prospect of 6 years’ imprisonment with no recommendation for release if re-sentenced).

The trial judge ruled that the s.13A material was not relevant to the proceedings and refused the application.

It is apparent from the transcript of proceedings in the Court of Appeal that very experienced southern counsel, Mr Callaghan SC (and not meaning to draw any distinction between those practicing south of the Tropic of Capricorn and those to the north), was surprised that the s.13A material had not been given to the appellants at trial as it “had never been an issue” in his experience.

It is unfortunate that there may be a different practice operating in different parts of the State. That is because, as the Court of Appeal recognised, such material often has important forensic value in eroding the credit of witnesses who have given an undertaking. It is also unfair that a defendant’s geographical location would determine the degree of fairness of his or her trial.

However, having said that, the Court of Appeal identified that in that case there was no good reason not to allow the defence access to the material, and every good reason to do just that (para [92]).

“real ongoing incentive to ‘minimise his [or her] own criminality and maximise that of others, including the appellant[s]’; and making this point to the jury to undermine the credibility of Ferguson and McReadie was “a most obvious forensic way to lead the jury to a reasonable doubt” as to the reliability of the evidence of Ferguson and McReaddie against the appellants.’

The Court described the trial judge’s decision as an “erroneous denial to the appellants of a forensic advantage which should have been made available to them” (para [93]). This was held to be a significant irregularity. However, because of the other irregularities in the trial, the convictions were quashed and a new trial ordered.

This decision should be contrasted with the decision in R v Lowrie and Ross [2000] QCA 405, where a similar application was refused at trial and the Court of Appeal (McPherson and Thomas JJA and Muir J) held there was no error.

Upon retrial, the appellants were convicted of murder. The witness Nowlan was an inmate of Brisbane Women’s Correctional Centre and shared a cell with Ross and gave evidence that Ross had certain admissions to her. Nowlan had given a 13A undertaking.

The difficulty seemed to be that counsel at trial had applied for permission to cross-examine the witness Nowlan on whatever was in the sealed envelope. It was put to the witness that she was a police informer and had given police information about crimes committed by others and that this had been taken into account in her favour by the courts. It seems that the sealed envelope had come into existence by way of s. 13A.

Thomas JA was of the view the application to cross-examine was an attempt to get the contents of the confidential exhibit before the jury and thereby impugn the credit of the witness. His Honour said the application should have failed because it attempted to adduce collateral evidence on a question of credit and secondly an attempt to present hearsay evidence.

It is respectfully suggested that the reasoning in R v Evans, Robu and Bivolaru is to be preferred. In R v Smillie [2002] QCA 341 Holmes J recognised that it was important for trial judges to give very clear and specific directions to juries on the “practical effect” of a failure by the Crown witness to comply with their undertaking (para [24]). It is difficult to see how this can be achieved unless the specifics of the undertaking and the sentence which will be faced by the witness if he or she does not give evidence in accordance with their statement is not known.

The incentive offered to a witness to give evidence is clearly a matter of relevance for the jury. The defence should not be denied the right to know about the incentive, or to properly and effectively cross-examined on that incentive.

Darin Honchin

1. At the time of writing, the decision had not been made available on the Queensland Courts website – the writer is indebted to Mr Anthony Collins for a copy of the decision.